By Jesus Ayala-Candia

The fearmongering and abusive culture of Border Patrol has been very well documented in its near centennial history, obfuscating their heroic acts. The Supreme Court’s recent Egbert v. Boule decision is a Pandora’s box that the American borderland will now have to face as 20,000 Border Patrol agents have now been granted an immunity never before seen.

Last week’s 6-3 decision in Egbert v. Boule is the latest and most piercing attempt, regarding the accountability of rogue federal agents.

The case surrounds the controversy between the defendant, a Customs and Border Protection agent named Erik Egbert, and plaintiff Robert Boule, owner of a bed-and-breakfast on the U.S.-Canada border and an informant for U.S. Immigration and Customs Enforcement, reporting unauthorized migrants crossing the border near his property.

Egbert visited Boule’s property without a warrant to investigate a guest; when Boule refused to consent to a search, Egbert threw him against an SUV, then onto the ground, inflicting serious injuries.

The new Supreme Court’s decision abolishes an individual’s ability to sue CBP agents who violate their Fourth Amendment right of no “unreasonable searches and seizure,” effectively granting CBP agents a watertight immunity.

Though Egbert still allows state law enforcement officers – local police, sheriffs – to be sued in federal court for infringing on civil rights, it now curtails that for federal law enforcement officers, such as Border Patrol.

The new statute does allow individuals who believe their rights are violated to file a grievance with the federal institution employing the agent. Yet, an overwhelming 95% of 1,200 cases against CBP agents accused of misconduct result in “no action” being taken.

While the Fourth Amendment’s safeguards against excessive force by law enforcement officers, it is still silent about what the proper remedy is against an officer who violates those safeguards.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the 1971 decision involving a claim of excessive force against federal narcotics agents, held that when an officer acts unlawfully they possess “a far greater capacity for harm than an individual trespasser exercising no authority other than his own.”

Further, they argued that in such cases “federal courts may use any available remedy” to craft one when Congress fails to do so.

Since Bivens, conservative justices have been chipping away to overrule it. Egbert is not overruling it but has begun paving the way. The court has argued that the precedent created by Bivens should only be sustained if the facts of the case mirror the circumstances of Bivens.

In my view, the actions surrounding Egbert and Boule are a mirror of Bivens. Writing the majority opinion, conservative Justice Clarence Thomas found that in Egbert the circumstances are contextually different as the incident occurred close to the Canadian frontier; as such, applying Bivens would create a “judicial intrusion” of the court into congressional foreign and policy-making affairs.

Justice Thomas expressed that “prescribing a cause of action is a job for Congress, not the courts, we reverse.”

I question the validity of this “judicial intrusion” idea, as the court hasn’t shied away much before in terms of immigration and policy cases.

Shortly after Bivens, the 1975 Brignoni-Ponce decision held that it was a violation of the Fourth Amendment if a Border Patrol agent stopped a roving vehicle solely based if the driver appeared to be of Mexican descent; unless “articulable facts” could also be established (i.e. shattered windshield, low-riding car, etc.).

Scholars have contended that such a decision has been found at times “the only factor in automobile border stops.”

In U.S. v. Martinez-Fuerte, the Supreme Court granted Border Patrol agents the right to stop and question people “of apparent Mexican ancestry” at an immigration checkpoint located on a public highway approximately 100 miles from the nearest border. Finally, in 2020 Hernandez v. Mesa, the Court held that the family of a Mexican child could not sue a Border Patrol agent who shot and killed their son – even if proving that the agent shot without provocation – as it could “(undermine) border security., In short Hernandez set the stage for Egbert to triumph.

Justice Sonia Sotomayor posed her sobering question about the politized “stench” engulfing the court during the oral arguments over the Mississippi abortion case. The question that Borderland residents must ask in turn is: can we survive the stench that this decision is spanning across the U.S. borders when its scent is this fetid? I don’t see how it is possible.

Jesus Ayala-Candia is an El Paso native and is a graduate student at Texas Tech University. His research interests include immigration studies, Latinx sociology, sociolegal interactions and social justice issues. These views are his own and do not speak on behalf of those institutions.